Protecting Your Organization
from Retaliation Claims
Raymond L. Hogge, Jr.
Hogge Law
Attorneys and Counselors at Law
500 E. Plume Street, Suite 800
Norfolk, Virginia 23510
(757) 961-5400
This presentation is available on
VirginiaLaborLaw.com
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Why is Retaliation Important?
• Retaliation is prohibited under many
federal and state statutes.
• Plaintiff can lose underlying claim and
still win retaliation claim.
• Can expose employers to greater
liability than underlying claim.
• Retaliation claims are on the rise.
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What Laws Prohibit Retaliation?
• Title VII and other EEO laws
• FLSA and other wage hour laws
• FMLA
• Virginia Workers’ Compensation Act
• OSHA
• And more....
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What is Retaliation?
• Retaliation is
– an “adverse action”
– taken against an “employee”
– because the person engaged in
(“causal link”)
– a “protected activity”
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Who is a Protected Employee?
• Current Employees
• Applicants
• Former Employees
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What Actions Are Protected?
• Opposition
• Participation
• Seeking or obtaining benefits
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What Actions Are Protected?
• Opposition - examples
–
–
–
–
–
Speaking out against illegal conduct
Questioning illegal conduct
Refusing to violate law
Lodging an internal complaint
Facebook?
The employee must have an objectively
reasonable belief that what he is opposing is
unlawful.
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What Actions Are Protected?
• Participation - examples
– Filing an agency charge
– Providing evidence in an agency
investigation
– Filing a lawsuit
– Testifying
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What Actions Are Protected?
• Seeking or obtaining benefits - examples
– Requesting or taking FMLA leave
– Requesting ADA accommodation
– Requesting FLSA overtime
– Filing worker’s compensation claim
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What is an Adverse Action?
• Termination?
• Demotion?
• Denial of promotion?
• “Cold shoulder?”
• Slights from coworkers?
• Not being invited to lunch?
• Not being invited to the SHRM
convention?
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What is an Adverse Action?
Burlington Northern &
Sante Fe Railway v. White,
548 U.S. 53 (U.S. S. Ct. 2006)
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• Sheila White complained about sexist
remarks by supervisor
• Burlington punished supervisor
• Burlington changed White’s job duties
• Burlington suspended White for
insubordination, but reversed
• No loss of pay or benefits
• Issue: adverse action?
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• “The antiretaliation provision protects
an individual not from all retaliation,
but from retaliation that produces an
injury or harm.”
– Plaintiff must prove some harm to establish
adverse action
What kind of harm, and how much?
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• “The antiretaliation provision, unlike
the substantive provision, is not limited
to discriminatory actions that effect the
terms and conditions of employment”
– Plaintiff need not prove loss of pay or
benefits to establish adverse action
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• “An employer can effectively retaliate
against an employee by taking actions
not directly related to his employment or
by causing him harm outside the
workplace”
– Plaintiff need not prove harm at workplace
to establish adverse action
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• Title VII retaliation provision applies
only to employer actions “that would
have been materially adverse to a
reasonable employee or job applicant.”
– Action must be more than adverse; it must
be materially adverse
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• To establish adverse action “a plaintiff
must show that a reasonable employee
would have found the challenged action
materially adverse, which in the present
context means it might well have
dissuaded a reasonable worker from
making or supporting a charge of
discrimination.”
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• “Reasonable employee” is an objective
standard, not subjective
– Unresolved issue: What if an action meets
the objective standard, but the employee
subjectively did not perceived it as
materially adverse? What if the action had
no effect on the employee at all?
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• The Title VII retaliation provision
prohibits “employer actions that are
likely to deter victims of discrimination
from complaining to the EEOC, the
courts and their employers.”
– Important: “and their employers”
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• Not all objectionable actions are
materially adverse. The harm caused by
the action must be “significant”
– “It is important to separate significant from
trivial harm”
– “Petty slights, minor annoyances, and
simple lack of good manners” are not
sufficient
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Burlington Northern v. White
• “The significance of any given act of
retaliation will often depend upon the
particular circumstances. Context
matters…. An act that would be
immaterial in some situations is
material in others.”
– Litigation Note: This may prevent summary
judgment in many retaliation cases
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What About Intent?
• In Burlington Northern the Court noted:
“Burlington does not question the jury’s
determination that the motivation for
these acts was retaliatory”
• Because “motivation” was not disputed
in Burlington Northern, the Court did
not discuss intent
• Is proof of retaliatory intent still
required?
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
What About Intent?
• Assuming proof of intent is still
required, what is the relevant intent /
motivation / animus?
– Intent to punish or do harm?
– Intent to take the challenged action?
– What causal connection must exist between
the act of the employer and the act of the
employer?
– Courts are struggling with this question
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Adopt strong written antiretaliation
policy
– Evidence of actual policy and practice
– Promotes consistency in organizational
practices
– Written documents are persuasive to juries
– Agencies expect antiretaliation policy
– Lack of policy may suggest organization
tolerates retaliation
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Include in antiretaliation policy:
– Company prohibits retaliation
– Explanation of what retaliation is
– Examples of retaliation
– Retaliation will result in discipline or
discharge
– Procedure for reporting retaliation
– Summary of investigatory procedures
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Include antiretaliation statement in
personnel documents
– Grievance procedure
– Grievance forms
– Open door policy
– EEO policy
– Sexual harassment policy
– Employee evaluation forms
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Train supervisors and managers
– Retaliation policy and procedures
– How to prevent retaliation
– How to recognize and respond to retaliation
– Use case studies and practice sessions
– Require attendance at training
– Keep training attendance records
– Keep records of training materials
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Counsel supervisors who may engage in
retaliation
– Retaliation is natural response of
supervisor to employee accusation or
complaint
– Remind supervisor that retaliation is illegal
and prohibited
– Get written commitment from supervisor
not to retaliate
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Promptly investigate
– Retaliation complaints
– Reports of retaliation
– Information suggesting possible retaliation
– Complaints that may reflect retaliation
• Inform direct supervisors so they can
monitor situation
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Prepare written report documenting
– Reason for investigation
– Investigative process
– List of witnesses
– List of documents
– Factual findings and conclusions
– Recommended remedial action, if any
– This report is for internal use only and
should not be shared with the employee or
the accused
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Conclude investigation and take
remedial action, if any, promptly
– Orally inform employee and accused
supervisor of outcome of investigation
– If retaliation not found, explain reason to
employee
– If retaliation is found, take appropriate
disciplinary or remedial action
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Follow up with complaining employee to
confirm no further retaliation
– 30 days
– 60 days
– 6 months
• Document the follow up meetings
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Do not let fear of retaliation claim
prevent you from managing employee
– Apply performance standards consistently
– Apply standards of conduct consistently
– Apply discipline consistently
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Consistency is one the best ways to
prevent retaliation claims and one of the
best ways to defend them
– Apply performance standards consistently
– Apply standards of conduct consistently
– Apply discipline consistently
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
Preventing Retaliation Liability
• Documentation is crucial to prove
consistency and non-retaliation
– Document job performance through
evaluations on a regular schedule
– Document performance deficiencies
– Document disciplinary action
– Document employee complaints
Protecting Your Organization from Retaliation Claims
Raymond L. Hogge, Jr.
How to Respond to
Retaliation Claims
• Apply the same techniques you use for
responding to and investigating
underlying claims of discrimination,
harassment, etc.
• Follow your antiretaliation policy
Protecting Your Organization
from Retaliation Claims
Raymond L. Hogge, Jr.
Hogge Law
Attorneys and Counselors at Law
999 Waterside Drive, Suite 1313
Norfolk, Virginia 23510
(757) 961-5400
This presentation is available on
VirginiaLaborLaw.com